Saturday, January 08, 2011

Walking out your front door is a privilege, not a right

Among all the other reasons they're appalling, the Transportation Security Administration's new "enhanced pat-downs" and the willingness of many people to defend them are another example of how quickly a scenario that used to seem like an intentionally ridiculous reductio ad absurdum can become reality. If anyone in 2001 had suggested that in less than a decade the expansion of the national security apparatus would've brought us to the point where having one's privates manhandled by government agents would be a common, unexceptional procedure for getting on a plane, it would've been held up as proof of how silly, hysterical, and unreasonable civil libertarians were in their opposition to even the most reasonable, commonsensical, Serious People-approved measures to protect the American people in the post-9/11 world. If something like this appeared in a book or movie or TV show set in some dystopian future America, it would seem like bad writing- too implausible, too hamfisted in the way it pushes at people's sense of revulsion to make the bad guys seem like cartoon caricatures, too obviously a cheap attempt to manipulate the emotions of the audience rather than thoughtful speculation about what the future might hold. (Even the name of the company that makes the machines that scan through people's clothes, "Rapiscan Systems," sounds like something some especially lazy and unsubtle dimestore hack would come up with.)

And yet here we are, with precisely that happening and no shortage of people lining up to defend it. Many valuable lessons can be learned from all this- about the mainstream media's revolting combination of sycophancy towards the government and smug, sneering condescension towards any dissent among the peasantry, the tribalism and authoritarianism of so many liberals/progressives even on the civil liberties issues they're supposedly "good" on, the bigotry and intolerance of many of the same people who pride themselves on how accepting and live-and-let-live they supposedly are. What's most interesting to me, though, is just how implicitly totalitarian some of the more popular justifications are.

(This primarily applies to the honest defenders of the TSA's current methods. The loathsome "As a liberal I nominally disapprove of degrading attacks on people's privacy and dignity, groping little kids, turning air travel into a potentially nightmarish ordeal for rape survivors, autistics, and anyone else who has issues with being manhandled by strangers, and leaving cancer sufferers humiliated and/or spattered with their own urine, but I disapprove of people who actually speak out against it or challenge it far more" subspecies is a separate case.)

Quite typical are arguments along the lines of, “You consented to this when you bought a ticket. No one is forcing you to fly.” The rather creepy similarity this argument shares with the sort of "You knew you what you were getting yourself into" abuse directed at victims of rape and sexual assault has been ably discussed by others, so I'll stick to the more general libertarian point about the abuse of the concept "consent." These procedures are mandated by the government. They are not the result of property owners freely choosing to set particular conditions to be allowed on their property. If you wish to engage in a consensual commercial exchange with an airline, you are forced to submit to the government's procedures. This is obvious, but when dealing with such elementary mistakes it's necessary to restate the obvious.

Yes, you can choose not to fly. If I assembled a gang of club-wielding hooligans, lined them up by the door of your local supermarket and forced shoppers to run the gauntlet as they entered, you're free to buy food somewhere else, or grow or hunt your own. If I announced that I would kill anyone who tried to go out with my sister, you are free to not date my sister. If you think the TSA rules are supposed to be more legitimate because they're from the government, fine; suppose that the duly elected legislature has decreed that supermarket shoppers must run the gauntlet or that dating my sister is a capital crime. (Yes, the latter is effectively a bill of attainder, but if we're already reducing the 4th Amendment of the Constitution to a meaningless blot of ink I don't see a minor creative reinterpretation of Article 1 doing much harm.)

This sort of argument based on “consent” is among the most commonly used defenses of state power in general, of course-the state is legitimate and thus has the right to make you do/not do X because you supposedly consented to it by choosing to remain within the territory the state claims jurisdiction over rather than leave. (And the state has the right to claim jurisdiction over the territory and demand obedience within it because the state's power is legitimate. And that power is legitimate because, of course, you've consented to it. It's never a good sign when the justification for your political ideology resembles the episode of Futurama where the cast accidentally travels back in time and Fry discovers, to his horror, that he's his own grandfather.) But hearing this kind of reasoning used to justify and whitewash coercion in the course of an abstract discussion about the government's power to use force in general doesn't have the same visceral punch as seeing it used in a more concrete scenario, especially when that scenario is “If you enter a voluntary commercial transaction with a private business, you have no grounds to object when some third party gropes your genitals against your will.”

Similarly with the common and supposedly important point that flying is not a constitutionally guaranteed right, and that the government is therefore justified in setting onerous conditions, including waiving basic constitutionally guaranteed rights, on people who choose to fly. Or, as it is often put,"Flying isn't a right, it's a privilege." It's certainly true that the Constitution says nothing about a right to airplane travel. It also says nothing about any right to travel by any means, including your own legs. It says nothing about the right to buy food, or walk down the street, or go to a doctor, or to have a job, or to not have a job. There's no constitutionally enumerated legal right to perform basic biological functions like eating and drinking. I suppose a right to breathe is implicit in the right to freedom of speech, so at least we've got that going for us.

If the TSA search is voluntary, anything done to a person is voluntary provided that they are warned beforehand what will be done to them and under what circumstances it will be done. If subjecting unwilling flyers to degrading intrusions on their person and depriving them of their legal rights under the Fourth Amendment is excused because there's no constitutionally enumerated “right to fly,” then the government can legitimately place all sorts of onerous conditions on almost any activity imaginable.

Having accepted these premises, if some government agency decreed that anyone who entered a shopping mall could be required to submit to a police strip search at any time, or that anyone who traveled by car/taxi/train/boat/whatever had thereby waived their First Amendment rights, or that anyone who worked in the skilled trades was required to perform sexual favors for government licensing officials and their pals, what objection is possible? You could still criticize such requirements on the grounds that they're not effective for whatever their supposed purpose is, but you couldn't reasonably say that they were somehow oppressive or unjust. These things aren't rights, after all, and no one is forcing you to do any of them.

(It's especially amusing how often, now that Bush is out of office and many of his critics on the Left have dropped their pretense of caring about civil liberties, these argument are so often coming from the same quarters as arguments that consensual economic transactions are really coercion because of unequal bargaining power between the parties to the exchange or an insufficient number of available alternatives.)

A lot of people likely would regard this as a feature rather than a bug, to be sure. The standard pattern in American politics for any respectable political ideology is to regard almost every aspect of life as a legitimate area for technocratic government control, aside from a few exceptions set aside as more-or-less immune. Your right to talk/pray/copulate as much as you want is sacred; anything else you choose to do or not do in your life is a privilege, and you'd damn well better be grateful for it.

5 comments:

Anonymous
said...

(It's especially amusing how often, now that Bush is out of office and many of his critics on the Left have dropped their pretense of caring about civil liberties, these argument are so often coming from the same quarters as arguments that consensual economic transactions are really coercion because of unequal bargaining power between the parties to the exchange or an insufficient number of available alternatives.)

I've noticed this form of bait-and-switch quite often. A coercive government program or policy is likened to a voluntary market (e.g., "You pay taxes to participate in the commonwealth" or "in exchange for social services such as low-cost healthcare," etc.) Not only is this comparison wrongheaded, but those making the comparison conveniently forget that they usually characterize a genuinely free market as "coercive" due to the unequal conditions of the participants.

(It's especially amusing how often, now that Bush is out of office and many of his critics on the Left have dropped their pretense of caring about civil liberties, these argument are so often coming from the same quarters as arguments that consensual economic transactions are really coercion because of unequal bargaining power between the parties to the exchange or an insufficient number of available alternatives.)

I've noticed this form of bait-and-switch quite often. To get around the question of consent, a coercive government program or policy is likened to a voluntary market transaction (e.g., "You pay taxes to participate in the commonwealth" or "in exchange for social services such as low-cost healthcare," etc.) Not only is this comparison wrongheaded, but those making the comparison conveniently forget that they usually characterize a genuinely free market as "coercive" due to the unequal conditions of the participants.

The right to airplane travel specifically may not be in any constitutional document, but the Supreme Court HAS indeed found in legal cases in the past that travel by any "common means" cannot be infringed excessivly, otherwise this infringes upon the right to "free association," which means people-to-people and people-to-business.

For example, I cannot work with many companies in China unless I GO to China at some point. I cannot go to China without flying. Thus, infringing my right to flight options as travel infringes my free association.